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CJE Opinion No. 2009-3

Serving on Statutory Commission

May 1, 2009

CJE Opinion No. 2009-3

Statute 2008, c. 302, §56, creates an eleven-member special commission to study the impact of "the OxyContin and heroin epidemic on state and municipal government" and to identify potential strategies for coping with that epidemic. The legislation provides that the study must include consideration of a broad range of impacts flowing from use of the drugs, the cost of those impacts, and strategies realistically available to deal with them. As the study proceeds, the legislation requires consultation with the department of public health, the executive office of public safety and security, the trial court, the department of correction and other entities. The commission's report must be filed with the Legislature no later than January 1, 2009.

In addition to describing the scope of the study, the legislation describes the composition of the commission and mandates that one member "be a representative from the trial court." You have been requested to recommend an appropriate person for that appointment and you seek the committee's opinion as to whether you may do so consistent with §4C(2) of the Code of Judicial conduct. In seeking the committee's opinion, you state that you would request that any person you recommend "indicate to the commission in advance that he or she will abstain from participating in commission discussions, and joining any resulting policy or legislative recommendations, that do not directly involved or impact the court system."

Section 4C(2) of the Code provides that

"[a] judge shall not accept appointment to any governmental position, including a governmental committee or commission, that is concerned with matters other than the improvement of the law, the legal system, or the administration of justice . . . ."

At the outset, recommending a member to serve on the commission, by itself, would not violate §4C(2) or any other provision of the Code and you have not indicated that you seek to serve on the commission yourself. Under those circumstances, there is a question whether limitations on the committee's power, specifically the limitation contained in committee Rule 3, which says that the committee "will not render opinions on hypothetical questions nor upon questions relating to the conduct of persons other than the requesting Judge," prohibits the committee from answering the substantive question implicit in your request, namely whether someone you recommend would violate §4C(2) if he or she actually served on the commission. Because time is of the essence and because the committee has suggested in the past the judges ought to avoid invitations to their colleagues that might place those colleagues in an awkward position vis-§-vis the code, see, e.g., CJE Opinion 2000-3, the committee thinks it appropriate to answer that substantive question.

Turning, then, to substance, the Commentary to Section 4C says that "[j]udges should not accept governmental appointments that are likely to interfere with their effectiveness and independence." That admonition is produced by a concern regarding "[t]he potential danger to the judiciary as an independent branch of government if its members are permitted to lend the prestige of their judicial office to the explicit policy-making functions of other independent branches of government." CJE Opinion 1989-4. Moreover, there is always a concern that a governmental commission or agency may recommend legislation that, after enactment, would be challenged as violating a litigant's constitutional or statutory rights. It would be awkward, to say the least, if a member of the judiciary had a hand in crafting a statute subject to such a challenge.

In this case, the subject matter of St. 2008, c. 302, §56, does include "improvement of the law, the legal system, or the administration of justice . . . ." but the subject matter also includes a broad array of other subjects. The committee is of the opinion, therefore, that a clear limitation regarding the extent of a judicial member's participation in the commission's work would allow a judge to participate. Indeed, in CJE Opinions 2008-7 and 1989-4, the committee, after advising that the code did not permit judicial membership on the governmental bodies there at issue, said that the code did not prohibit consultation that was limited to the matters now described in Section 4C(2). To avoid the appearance that the judicial member participated in recommendations beyond those §4C(2) permits, the limitations should be clearly disclosed on any document listing committee membership and on all reports and recommendations the committee makes.

In order to insure that the judicial member's limited role is clear both to the member and to the public at large, the committee is of the opinion that the limitation should have clear boundaries, e.g., a limitation to "the efficacy of various approaches to alternate dispositions and sentence structures on those accused or convicted of offenses related to heroin or OxyContin and the impact those dispositions, sentence structures and associated prosecutions may have on judicial resources and case-flow management." That is not the only conceivable limitation, but some sharp and clear limitation of that kind is, in the committee's view, essential.

In sum, the committee believes that you may recommend a judicial nominee to serve on the commission contemplated by St. 2008, c.302, §56, provided that the scope of the nominee's participation is sharply and clearly limited to "improvement of the law, the legal system, or the administration of justice . . . ." and that the limitation is clearly disclosed on all documents that list committee members and on all reports and recommendations the committee makes.

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